State v. Oyler ( 1968 )

TAYLOR, Chief Justice

(concurring):

I concur in the conclusion reached. I agree that in case the district court determines that absention from alcoholic beverages is essential to a probation for appellant, then it would be proper for the court to commit him under the sentence pronounced. Until the legislature provides a different means for the rehabilitation of the chronic alcoholic, the courts must resort to incarceration as the only available remedy. I am not ready to agree that incarceration in such cases would constitute “cruel and unusual punishment.”

If the district court should find upon the hearing to be conducted, that appellant’s violation of parole consisted of driving an automobile while intoxicated, then the probation should be revoked and the judgment should be executed without regard to the question of whether appellant is incapable of refraining from using intoxicating beverages. In such case the incarceration would be punitive as well as rehabilitative. Violation of the statute making it a crime to drive an automobile while intoxicated cannot be excused by the courts whether or not the driver is capable of refraining from the use of intoxicants.